[2018] KEELC 3163 (KLR)
The court found that the defendant had failed to comply with the previous judgment restraining him from interfering with the applicant's land and had further obstructed access by uprooting beacons and closing the access road. Given the defendant's non-compliance and absence of opposition, the court held that it was...
Source-derived case information.
- Citation
- [2018] KEELC 3163 (KLR)
- Parties
- Applicant: Zakayo Kwendo Agoi; Respondent: Benson Ochunga Amboko
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kakamega
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 408 of 2017
- Procedural Posture
- Miscellaneous Application / Post Judgment Enforcement Application
- Outcome
- application allowed
- Judges
- NA Matheka
- Legal Topics
- Land Access Disputes, Enforcement of Judgments, Boundary Demarcation
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Zakayo Kwendo Agoi
Applicant
Benson Ochunga Amboko
Respondent
Procedural Posture
Miscellaneous Application / Post Judgment Enforcement Application
Legal Issues
- 1 Whether the Land Registrar and District Surveyor should be ordered to visit and survey L.R. W/Bunyore/Embali/2600 and open access road to the plaintiff's land.
- 2 Whether the defendant's actions in uprooting beacons and closing the access road justify court intervention for enforcement of the previous judgment.
Ratio Decidendi
The court found that the defendant had failed to comply with the previous judgment restraining him from interfering with the applicant's land and had further obstructed access by uprooting beacons and closing the access road. Given the defendant's non-compliance and absence of opposition, the court held that it was just and necessary to grant the orders sought to enforce its earlier decision. The court ordered the Land Registrar and District Surveyor to visit and survey the land and open the access road, with costs to be provided by the plaintiff, to ensure the applicant could enjoy the rights affirmed in the judgment.
Court Disposition
application allowed
Orders
- The Land Registrar Vihiga County and the District Surveyor Vihiga shall visit L.R. W/Bunyore/Embali/2600, survey the same, and open access road to the plaintiff’s land L.R. W/Bunyore/Embali/2600.
- The plaintiff will provide the costs.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT KAKAMEGA
ELC NO. 408 OF 2017
ZAKAYO KWENDO AGOI.......................PLAINTIFF/APPLICANT
VERSUS
BENSON OCHUNGA AMBOKO.....DEFENDANT/RESPONDENT
RULING
This application is dated 14th February 2018 and seeks the following orders;
1. That the Land Registrar Vihiga County and the District Surveyor Vihiga do visit L.R. W/Bunyore/Embali/2600 and survey the same and open access road to the plaintiff’s land L.R. W/Bunyore/Embali/2600.
2. That the plaintiff will provide the costs.
The plaintiff submitted that the court delivered its judgment herein in his favour on 8th February, 2018 restraining the defendant herein from entering upon, trespassing, working on, tilting, or in any manner dealing or interfering with his parcel of land No. W/Bunyore/Embali/2600. That the defendant has refused to honour the order issued by this honourable court and instead has uprooted the beacons demarcating the boundary and closed the access road to his piece of land.That the assistance of this court is necessary by ordering the Land Registrar and Land Surveyor Vihiga County visit the land parcel W/Bunyore/Embali/2600 to demarcate the common boundary and open the access road as surveyed by the government before.That the matter is already concluded except implementation of the judgment.That the orders sought herein will assist in a long way bring an end as this matter is determined.That it will be in the interest of justice to allow this application.
The defendant/respondent was served but failed to attend court or file any papers in opposition. This court has considered the applicant’s submissions. The application is based on the grounds that, the court delivered its judgment on 8th February, 2018 restraining the respondent herein from interfering with L.R. W/Bunyore/Embali/2600. That the defendant has not complied with the orders of injunction.That the respondent has gone further and uprooted all beacons and closed the access road to the plaintiff’s land.That it is for the interest of justice that the orders prayed for be issued.That the defendant stands to loose nothing by granting the orders sought. I find that this application has merit and I grant the following orders;
1. That the Land Registrar Vihiga County and the District Surveyor Vihiga do visit L.R. W/Bunyore/Embali/2600 and survey the same and open access road to the plaintiff’s land L.R. W/Bunyore/Embali/2600.
2. That the plaintiff will provide the costs.
It is so ordered.
DELIVERED, DATED AND SIGNED AT KAKAMEGA IN OPEN COURT THIS 22ND DAY OF MAY 2018.
N.A. MATHEKA
JUDGE